NO GOOD DEED GOES UNPUNISHED IN FEDERAL DISCOVERY: PARTIAL PRODUCTION OF DOCUMENTS “SUBJECT TO AND WITHOUT WAIVING” OBJECTIONS HELD TO WAIVE OBJECTIONS

April 30, 2018

Last week, a federal district court in Sherman issued a discovery ruling that could work drastic changes in federal discovery practice, not only in insurance cases, but in all federal cases. Star Creek Center, LLC v. Seneca Ins. Co., Inc., 4:17-CV-00607, 2018 WL 1934084, at *1 (E.D. Tex. Apr. 23, 2018) is a first-party “bad faith” case in which the insured alleged hail damage to its property. The plaintiff served a set of requests for production on Seneca, which Seneca answered late. In response to Plaintiff’s motion to compel, Seneca offered no good cause for its delay. Therefore, the court held Seneca’s objections were waived because they were not timely.

The court also made an unsurprising holding that boilerplate objections such as “overly broad and vague,” which were repeated ad nauseum and did not explain why each specific request was overly broad and vague, were improper under the rules.

However, the court then went on to hold that Seneca had also waived each of its specific objections because the responses contained the phrases “subject to” and “without waiving” the objections as a preface to offering any documents. The court criticized this method of responding and held that it was not specific enough as to either the completeness of the answer or the availability of documents for inspection. The court held that making these types of statements in discovery responses waives the objections.

The court tempered this ruling somewhat by also placing a “modest burden” on the party seeking production of documents to demonstrate “with existing documents, a reasonable deduction that other documents may exist or did exist but have been destroyed.” And the court stayed true to existing precedent holding that even after objections are waived, “a party will still not be compelled to produce documents if the request is overbroad or unduly burdensome on its face.” However, the court ordered Seneca to produce personnel files for all employees assigned to handle Plaintiff’s claims, finding they fell within the proportionality standard for federal discovery.

Editor’s Note: It is unclear whether the outcome might have been different if the objections had been timely and not inexplicably late. But regardless, this ruling on its face appears to significantly impair the ability of a responding party to offer SOME documents as a compromise even though it objects to part or all of a particular request. The practice of objecting to a request, but agreeing to provide some documents “subject to and without waiving” the objections, is widespread in discovery practice. The idea that a non-waiver statement would itself constitute a waiver is surprising, to say the least. If offering to produce any document “subject to and without waiving” an objection will have the effect of waiving the very objection counsel is expressly trying to preserve, then it seems responding parties may be left with little choice but to stand on every objection, offer nothing by way of proposed compromise, and force the court to hear a motion to compel. One less aggressive alternative might be to negotiate a separate agreement with the requesting party under which certain documents will be produced.

It remains to be seen whether this type of discovery ruling will spread beyond the Eastern District or even the Sherman Division, or whether it will be applied the same way when the objections are timely and not late. But with Star Creek on the books (unless, of course, it is overturned on mandamus), a safer practice in federal discovery may be to eliminate the phrase “subject to and without waiving” from all discovery responses, relying if necessary on completely separate agreements to make partial production of documents in an effort to reach a workable compromise.

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